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State v. Brekke

Supreme Court of Montana

April 11, 2017

STATE OF MONTANA, Plaintiff and Appellee,
MICHAEL ROBERT BREKKE, Defendant and Appellant.

          Submitted on Briefs: February 1, 2017

         APPEAL FROM: District Court of the Fifteenth Judicial District, In and For the County of Sheridan, Cause No. DC-46-2013-5 Honorable David Cybulski, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Chad Vanisko, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, Montana Benjamin Fosland, Sheridan County Attorney, Scobey, Montana

          Mike McGrath Chief Justice

         ¶1 Michael Robert Brekke appeals from the District Court's denial of his motion to dismiss the criminal charges against him on the ground that he was denied his right to a speedy trial. We affirm.

         ¶2 The issue on appeal is: Did the District Court err in denying Brekke's motion to dismiss on speedy trial grounds?


         ¶3 On August 12, 2012, in Sheridan County, Montana, Brekke took a pickup that did not belong to him and went on a joy ride through a campground where he had been staying. He damaged the truck and campground property. A Sheridan County Sheriff's Deputy investigated and issued Brekke a complaint and notice to appear in Justice Court for the offenses of criminal mischief, a felony, and unauthorized use of a motor vehicle, a misdemeanor. The Deputy did not arrest Brekke on those charges and his initial appearance in Justice Court was set for August 22, 2012.

         ¶4 Also on August 12, the Sheriff's Office discovered that Brekke was wanted in Minnesota on an arrest warrant for a probation violation following a conviction for check forgery. The Sheriff arrested Brekke on the Minnesota warrant, and he made an appearance in Justice Court on the campground charges. On August 14, 2012, Brekke appeared in District Court, waived extradition, and consented to return to Minnesota. Brekke received a one-year sentence on the Minnesota probation violation. During that sentence he was charged with and convicted of escape and received an additional ninety-one-day sentence.

         ¶5 On March 12, 2013, while Brekke was in prison in Minnesota, the State of Montana obtained leave from the District Court to file an information charging him with criminal mischief and unauthorized use of a motor vehicle arising from the August 12, 2012 campground incident. The District Court issued a warrant for Brekke's arrest on those charges and set bail. The arrest warrant and charging documents were served on Brekke on May 14, 2013, while he was still being held in Minnesota. The Minnesota authorities informed the Sheridan County Sheriff that Brekke would be released from his Minnesota incarceration on June 1, 2013. Within a day or two after that date, officers from the Sheridan County Sheriff's Office picked up Brekke in Minnesota and transported him back to Montana.

         ¶6 Brekke obtained representation by the Public Defender and made an initial appearance in District Court on the Montana charges on June 24, 2013. The District Court set trial for September 12, 2013. On June 25, 2013, the District Court reduced Brekke's bail and he was released from custody. Brekke's lawyer asked for and obtained a continuance of the September trial date and the District Court re-set the trial for October 17, 2013. The District Court conducted an omnibus hearing on the charges on August 13, 2013. On September 16, 2013, Brekke moved to dismiss the charges, contending that he was not afforded a speedy trial. Shortly thereafter, on September 20, 2013, Brekke moved to continue the October 17 trial date. The District Court re-set the trial for January 16, 2014.

         ¶7 The parties briefed the speedy trial issue and on December 20, 2013, the District Court conducted a hearing. Brekke did not appear at the hearing, and his attorney represented to the District Court that Brekke waived his right to be present. Neither Brekke nor his attorney submitted any evidence in support of the speedy trial motion.

         ¶8 The State called the campground owner who testified to the factual basis for the charges against Brekke and the damage done to the pickup and campground property. The Sheridan County Sheriff testified to serving the arrest warrant in Minnesota and securing Brekke's return to Montana. He testified that all of the witnesses named in the investigative file were still available to testify and that he was not aware of any lost or ...

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